13 March 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 17 of the trial, 13 March 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
2413
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 March 13, 2001
9:55 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
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18
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20
21
22
23
24
25
2414
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
9
FREDRICK H. COHN
10 DAVID P. BAUGH
LAURA GASIOROWSKI
11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
12 DAVID STERN
DAVID RUHNKE
13 Attorneys for defendant Khalfan Khamis Mohamed
14
SAM A. SCHMIDT
15 JOSHUA DRATEL
KRISTIAN K. LARSEN
16 Attorneys for defendant Wadih El Hage
17
18
19
20
21
22
23
24
25
2415
1 (Trial resumed)
2 (Jury not present)
3 THE COURT: The government has handed me a proposed
4 advice to the jury with respect to the timing of the trial. I
5 take it, Mr. Fitzgerald, that this suggested advice to the
6 jury is predicated on the signing of various stipulations.
7 MR. FITZGERALD: Yes, Judge.
8 THE COURT: Have those stipulations been signed?
9 MR. FITZGERALD: Some have, not all. Some are still
10 being reviewed or in process.
11 THE COURT: Why isn't the prudent thing for me to do
12 to wait, and when the court is advised that all of the
13 stipulations which materially affect the timing of the case
14 have been signed and have been introduced in evidence, then I
15 would give an instruction similar to this to the jury?
16 I think about the first week in the trial there was
17 some inquiry from one of the jurors as to whether there was
18 any change in the estimated duration. I have not had any
19 inquiry since. The worst thing is to raise expectations and
20 then they are defeated, so I certainly think we should let the
21 jury know as soon as possible, but I think the prudent thing
22 is to wait until the stipulations are in fact signed.
23 Anything else? The jury may be brought in and the
24 next witness -- yes.
25 MR. SCHMIDT: Your Honor, I had a discussion with Mr.
2416
1 Fitzgerald yesterday. Because of the stipulations and the
2 pace of the government's case, we are starting to outrun our
3 ability to discuss the stipulations with the government,
4 because they need to prepare all their witnesses and at the
5 end of the day they have the evening that they are doing work
6 and we don't have the time in the evening to sit down with
7 them and discuss some issues that we would like to resolve
8 that would help continue to shorten the trial. Because the
9 pace is moving so quickly, Mr. Fitzgerald and I thought that
10 if we could have --
11 THE COURT: How about the 21st?
12 MR. SCHMIDT: We were hoping to get an afternoon say
13 tomorrow to work on some stipulations that would be useful for
14 next week. That is why we are trying to sort out everything
15 so that next week runs smoother, but we really need a little
16 bit of time.
17 MR. FITZGERALD: The witnesses for next week possibly
18 come from Manchester, England, as well as California and
19 Tanzania. We have flown people in without knowing what has
20 been stipulated to, at one point having someone come from
21 Kenya and not needing to put them on. Part of the problem is
22 that I can't talk to Mr. Schmidt about witnesses that we don't
23 know if we will call. If we had some time Wednesday or
24 Thursday, I think we could save time. One of the things I was
25 going to suggest is that I realize there may be interregnum
2417
1 time between the government's case and the defense case but I
2 think taking one of those days and doing it now would benefit
3 both the government and the defense.
4 MR. SCHMIDT: I don't know about using one of those
5 days, but if we could have an afternoon to sit down and work
6 on some of the stipulations, I think it is actually a time
7 saver rather than a time spender.
8 THE COURT: When would you like to do that?
9 MR. SCHMIDT: I would propose tomorrow afternoon
10 would probably be a good time, to have enough time to deal
11 with next week's issues.
12 MR. FITZGERALD: Mr. Ricco has been talking to us
13 about having his client see Witu originals and then the
14 documents from Pakistan so that we don't have a delay on
15 whatever we offer on those matters. My suggestion would be
16 either tomorrow or Thursday. We expect to put on probably a
17 couple of dozen witnesses between today and tomorrow, but --
18 THE COURT: When do you expect to get to Tanzania?
19 MR. FITZGERALD: We expect to get substantially
20 through the Tanzania bombing in the next two days. Then the
21 big witness would be Monday, which would be the agent who took
22 the statements. But I think the Tanzania bombing and some of
23 the forensic recovery in the next two days.
24 MR. SCHMIDT: If the government prefers Thursday,
25 that would be fine.
2418
1 THE COURT: I would prefer Thursday. Why don't we
2 not sit Thursday afternoon. I think I said at the beginning,
3 I am aware of the fact that sometimes pushing too hard is
4 counterproductive.
5 In a letter covering the transmission of the
6 government's requests to charge, it was stated that the
7 government plans to submit something to the court with respect
8 to instructions to the jury with respect to admissions or
9 statements made by codefendants. We spent sometime on that
10 with respect to Al-'Owhali. Nothing was said to the jury with
11 respect to Odeh. A request was made with respect to the
12 testimony concerning Odeh's statements. The issue will come
13 up again with respect to K.K. Mohamed, and you anticipate that
14 will be when?
15 MR. FITZGERALD: My anticipation would be probably
16 Monday.
17 THE COURT: If the government wants to submit
18 anything on that, I would like to have that before the
19 weekend, by Friday.
20 MR. FITZGERALD: OK.
21 THE COURT: And obviously anything from the
22 defendants with respect to that issue should be submitted in
23 writing before the close of business on Friday.
24 Then I will tell the jury that we are not going to
25 sit Thursday afternoon, and I think I will say that is to save
2419
1 time. And I will defer on anything further with respect to
2 timing until I am advised that the stipulations have been
3 signed or they haven't been signed, and what impact their
4 nonsigning would have on the advice of the jury.
5 MR. BUTLER: Your Honor, with the court's permission,
6 for the next witness I would like to do part of the
7 examination from over by the Elmo so we can put documents on
8 the overhead.
9 (Jury present)
10 THE COURT: Good morning, ladies and gentlemen.
11 JURORS: Good morning, your Honor.
12 THE COURT: We are not going to sit this Thursday
13 afternoon. We will sit Thursday morning but we will not sit
14 this Thursday afternoon. So we are not sitting this Thursday
15 afternoon. We are not sitting on the 21st, which is a
16 Wednesday. And on Thursday the 22nd we are going to start a
17 little later than usual.
18 The reason we are not sitting Thursday afternoon is
19 that, talking to the attorneys there are some matters that
20 they need time to work on, all of which are designed to save
21 time. I hope sometime in the near future to give you a better
22 estimate with respect to timing, and I am optimistic that the
23 earlier estimates you have been given will prove to be overly
24 cautious. But I don't want to make a more definite statement
25 until we have more information.
2420
1 So then, we will sit all day today, we sit all day
2 tomorrow. Thursday we do not sit in the afternoon. We sit in
3 the morning. We do not sit on the 21st. On Thursday the
4 22nd, we will start I think an hour later than originally
5 scheduled.
6 The government may call its next witness.
7 MR. BUTLER: The government calls Agent Michael
8 Anticev.
9 MICHAEL ANTICEV,
10 called as a witness by the government,
11 having been duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MR. BUTLER:
14 Q Agent Anticev, how are you employed?
15 A I am employed with the FBI.
16 Q How long have you been employed with the FBI?
17 A Approximately 10 years.
18 Q What office are you assigned to?
19 A New York office.
20 Q Drawing your attention to August 1998, did there come a
21 time when you received an assignment to travel to Nairobi,
22 Kenya?
23 A That is correct, closer to the end of the month.
24 Q Drawing your attention specifically to September 3, 1998,
25 where were you working?
2421
1 A At the CID, which is the Criminal Investigative Division
2 of the Kenyan National Police.
3 Q Are you familiar with Special Agent Lisa Martin?
4 A Yes, I am.
5 Q Now Agent Foster?
6 A Yes, I am.
7 Q Did you speak with her that day?
8 A On September 3, yes.
9 Q As a result of that conversation, what did you do?
10 A I obtained a black briefcase from her.
11 Q What did the package look like that you received?
12 A Initially it was wrapped in a brown paper.
13 Q What did the briefcase look like?
14 A It was a black, normal business briefcase.
15 Q What did you do once you received the briefcase?
16 A I took the briefcase to another room, where I opened it,
17 initialed and dated all the documents. With another agent we
18 photographed everything, logged it, and then photocopied
19 everything.
20 MR. BUTLER: May I approach, your Honor?
21 THE COURT: Yes.
22 Q Agent Anticev, I place before you what has been admitted
23 into evidence as Government's Exhibit 900. Do you recognize
24 that?
25 A Yes, I do.
2422
1 Q How do you recognize it? First, what is it?
2 A It is the black briefcase.
3 Q The one you received from Agent Martin that day?
4 A Yes.
5 Q How do you recognize it as the black briefcase that you
6 received from her that day?
7 A I have my initials and it is dated here 9/3/98.
8 Q Once again, what did you do with the briefcase after you
9 opened it?
10 A After I opened it, we inventoried all the documents,
11 photocopied them, photographed them, and I initialed and dated
12 them.
13 Q I place before you what have been previously marked as
14 Government's Exhibits 901 to 929 for identification. Agent
15 Anticev, I just ask you to take one moment and look through
16 those documents and tell us whether you recognize those
17 documents? You can also tell us, if you do recognize them,
18 how you recognize them?
19 A I do recognize these documents. They have my initials,
20 are dated 9/3, and they are the documents that were inside
21 that briefcase.
22 MR. BUTLER: Your Honor, I offer Exhibits 901 to 929
23 at this time.
24 THE COURT: Yes.
25 MR. SCHMIDT: May I see the documents?
2423
1 THE COURT: Have you not seen them before? Yes, you
2 may look at them.
3 MR. SCHMIDT: We have not --
4 (Pause)
5 MR. SCHMIDT: Thank you.
6 THE COURT: Without objection, Exhibits 901 through
7 929 are received.
8 (Government's Exhibits 901 through 929 received in
9 evidence)
10 MR. BUTLER: Your Honor, with the court's permission
11 I am going to continue the examination from the overhead.
12 THE COURT: Yes.
13 Q Agent Anticev, we are going to place some of these
14 documents on the screen. I just ask you to identify what they
15 are. First is Government's Exhibit 901.
16 A It appears to be a Yemen passport.
17 Q Can you read the name on the Yemen passport?
18 A It's a little blurry on the screen but Khalid Salim Saleh
19 Ben Rasheed.
20 Q Let's turn to page 6 of the passport. Do you see a stamp
21 on 6?
22 A Yes, a Pakistani visa.
23 Q To the right of the screen, do you see a stamp there?
24 A Yes, at the top I can see one that is in Arabic, and there
25 is another one next to it below, dated July 31, '98 -- if you
2424
1 can just turn it -- the other way -- from Karachi, from
2 Pakistan.
3 Q Agent Anticev, do you see what is on the screen now,
4 another stamp?
5 A Yes. On the top it is a Nairobi stamp dated August 2,
6 '98.
7 Q Let's turn to Government's Exhibit 910.
8 A It's an i.d. card in Arabic.
9 Q Let's go to Government's Exhibit 904.
10 A It looks like a health vaccination card from Pakistan,
11 with the name of Khalid Salim Saleh.
12 Q Turning to the middle of that document, can you make out a
13 stamp on that page?
14 A Yes. It appears to be July, but I can't read the date.
15 Maybe the 28th of '98.
16 Q There you go.
17 A Right, July 28, '98.
18 Q Could we turn to Government's Exhibit 913, please.
19 A That's an airplane ticket.
20 Q If we turn to the last page of that airline ticket, what
21 is the name of the passenger on that airline ticket?
22 A It appears to be Saleh Rasheed Salim.
23 Q Can you make out the first name there before Saleh, all
24 the way to the left?
25 A From the screen, no.
2425
1 Q Let's move down. Where did the passenger leave from?
2 A Left from Lahore to Karachi, on to Muscat, to Nairobi, to
3 Sanaa.
4 Q If we move it over a little, do you see a date in the
5 upper right-hand corner?
6 A Yes, July 28, '98.
7 Q Let's go to Government's Exhibit 906, please. What is
8 Government's Exhibit 906?
9 A It appears to be some type of -- it appears to be a
10 passport, but --
11 Q Let's take a look at the interior pages.
12 A Some form of i.d. that is in Arabic.
13 Q Let's go to Government's Exhibit 902.
14 A That's a passport from the Kingdom of Saudi Arabia. It is
15 for Jihad, M period A period Ali.
16 Q Can we go to page 19. What is on the right side of page
17 19?
18 A On page 19 is an immigration stamp from Karachi dated June
19 19, '98.
20 Q If you look on the left side of the page, do you see
21 another stamp there?
22 A The triangular one?
23 Q How about the one that is in red?
24 A That's the exit one from Karachi.
25 Q What is the date again?
2426
1 A June 19, 1998.
2 Q If we turn to page 21.
3 A That appears to be a Kenyan visa and another stamp dated
4 June 19, 1998, for Kenya.
5 Q If we go to Government's Exhibit 908, please.
6 A That's another i.d. card in Arabic.
7 Q If you look on the back.
8 A It says private driver's license for the Kingdom of Saudi
9 Arabia.
10 Q If we go to Government's Exhibit 911, please.
11 A That's another i.d. card, also in Arabic.
12 Q If you look on the bottom, do you see some English
13 lettering?
14 A Yes, Kingdom of Saudi Arabia, identification card.
15 Q If we go to Government's Exhibit 912.
16 A That's a Kenyan Airways airline ticket.
17 Q If we go to the last page.
18 A That's for Mr. Jihad M period A period Ali.
19 Q What is the itinerary on that airline ticket?
20 A From Karachi to Nairobi to Karachi.
21 Q If you look up on the right-hand side of the screen, is
22 there a date that appears there?
23 A Yes, June 16, 1998.
24 Q Let's go to Government's Exhibit 903. What is
25 Government's Exhibit 903?
2427
1 A It's a passport, what appears to be from the Islamic
2 republic of Comoros.
3 Q What is the name on that passport?
4 A Fazul Abdullah Mohammed.
5 Q Looking at page 2 of the passport, there is a picture that
6 appears on the bottom left-hand corner, correct?
7 A Yes.
8 Q Let's go to Government's Exhibit 907.
9 A Those are blank Pakistani visa.
10 Q If we could go to Government's Exhibit 915.
11 A It appears to be an identification card, also in Arabic.
12 Q If we could turn that over. Is there some writing on the
13 back?
14 A Yes, in Arabic and in English. In English says Alwadi al
15 Mubarak Company, Ltd. and Gubaa Agriculture Project.
16 Q If we go to Government's Exhibit 916. What is
17 Government's Exhibit 916?
18 A It looks like a receipt from Lyndalian Airfreighters and
19 Forwarders.
20 Q Do you see a name on the receipt?
21 A Yes, Fazul Abdallah.
22 Q If we look, is there a date that appears there?
23 A It appears to be August 6, 1998.
24 Q If we could go to Government's Exhibit 918. What is
25 Government Exhibit 918?
2428
1 A A document referencing a visa for Ahmed Ahmed.
2 Q Agent Anticev, I am showing you what have been admitted
3 into evidence as Government's Exhibits 919 to 929. Have you
4 had a chance to review those items?
5 A Yes, I did.
6 Q What are they?
7 A These are all -- they are various airline tickets.
8 Q Were you able to review them yesterday?
9 A Yes.
10 Q Whose name are those airline tickets in?
11 A A lot of them belong to Fazul and family members.
12 Q To complete the identification of these documents, I show
13 you what has been admitted into evidence as Government's
14 Exhibit 905, if you could just identify that item.
15 A 905 is an international driving permit from Kenya, Uganda,
16 and Tanzania.
17 Q Does it have a name on it?
18 A For Mr. Fazul Abdullah Mohammed.
19 Q What is Government's Exhibit 909?
20 A 909 is an i.d. card that is in Arabic, both sides in
21 Arabic.
22 Q How about Government's Exhibit 914?
23 A 914 is a passport from the Islamic Republic of Comoros.
24 Q Is there a name on that passport?
25 A Yes, Halima Boudradine.
2429
1 Q Lastly, could you identify Government's Exhibit 917.
2 A 917 is written on Kenyan Airways letterhead and appears to
3 be a letter.
4 Q Agent Anticev, after you logged these documents, what did
5 you do with them?
6 A After I logged them, photographed them, initialed them,
7 dated them, I put them in the evidence room.
8 MR. BUTLER: No further questions, your Honor.
9 THE COURT: Any questions of this witness?
10 Thank you, Agent. You may step down.
11 THE WITNESS: Thank you.
12 (Witness excused)
13 MR. BUTLER: The government calls Agent Michelle
14 Carr.
15 MICHELLE MARIE CARR,
16 called as a witness by the government,
17 having been duly sworn, testified as follows:
18 DIRECT EXAMINATION
19 BY MR. BUTLER:
20 Q Agent Carr, how are you employed?
21 A As a special agent with the FBI.
22 Q How long have you been with the FBI?
23 A Five and a half years.
24 Q What office are you assigned to?
25 A The Washington field office.
2430
1 Q How long have you been with the Washington field office?
2 A Approximately four years.
3 Q Are you a member of any particular team?
4 A The Evidence Response Team.
5 Q Were you one of the members of the Washington Evidence
6 Response Team that went to Nairobi, Kenya, in August 1998?
7 A Yes.
8 Q Approximately when did you arrive?
9 A The end of August.
10 Q To be clear, what was your last name in the end of August
11 1998?
12 A Knop.
13 Q Drawing your attention to noon on August 7, 1998, do you
14 recall where you were on that date?
15 A I am sorry.
16 Q Drawing your attention to, I am sorry, September 7, 1998,
17 do you recall where you were on that date?
18 A Yes, at approximately noon we were preparing for a search
19 of a vehicle.
20 Q What type of vehicle was that?
21 A I recall it was a Datsun pickup, white color.
22 MR. BAUGH: If we could ask the witness to use the
23 microphone.
24 Q If we could display what was previously admitted into
25 evidence as Government's Exhibit 960A. Do you recognize what
2431
1 is depicted in 960A?
2 A Yes.
3 Q What is that?
4 A That is the pickup we processed.
5 Q Where is that located in CID headquarters; do you recall?
6 A It was located within CID under a carport.
7 Q Generally, what did you do to search the truck that day?
8 A I assisted in taking swabbings of the truck, collecting
9 evidence from inside the truck, and processing it for
10 fingerprints.
11 Q Before commencing the search, did you do anything to
12 prepare for your search?
13 A Yes. Swabbings were the first thing we did, so to prepare
14 for that we put on Ty-Vec suits and gloves.
15 Q After you put on the Ty-Vec suits and gloves, what did you
16 do?
17 A We took control swabbings of the suit and gloves.
18 Q What did you do after that?
19 A Then we began taking the swabbings from the truck.
20 Q What parts of the truck did you swab?
21 A Areas in the bed of the truck as well as areas inside the
22 cab of the truck.
23 Q What did you do with those swabbings once you took them?
24 A Each individual swab was placed in a glass vial. A lid
25 was put on the vial and then the vial was put into a small
2432
1 Ziplock bag.
2 Q Did you initial those bags?
3 A The bags had our names on them, indicating that we
4 recovered that particular swabbing.
5 Q I am going to show you what have been previously marked as
6 Government's Exhibits 971, 973, 979, 981, 977, 969, and 975.
7 I will ask you if you recognize these items?
8 A Yes.
9 Q What are those items?
10 A These are the swabbings that I collected from the truck.
11 MR. BUTLER: Your Honor, I move those exhibits into
12 evidence at this time.
13 THE COURT: Received.
14 (Government's Exhibits 969, 971, 973, 975, 977, 979
15 and 981 received in evidence)
16 Q Just to be clear, what was done with those items of
17 evidence after you took the swabbings?
18 A They were placed in the glass vial, the glass vial was
19 placed in the plastic bag, we placed all the swabbings in a
20 box, sealed that, and then secured them in the evidence room
21 at the CID.
22 Q What did you do -- did you handle those swabbings again?
23 A Yes. The next day we unsealed the box that they were in
24 and individually sealed each vial and each bag with the
25 evidence tape.
2433
1 Q Did you also seize from papers from the truck that day?
2 A Yes.
3 Q Where did you seize the papers from?
4 A They were located in the ashtray in the cab of the truck.
5 Q Do you recall what those papers were?
6 A Some miscellaneous receipts.
7 Q What did you do with those papers?
8 A Also I put those in a Ziplock bag, sealed the bag, and
9 placed that in the evidence room.
10 Q I am going to approach with what has been marked as
11 Government's Exhibits 992A and B and ask if you recognize
12 that?
13 A Yes.
14 Q What is Government's Exhibit 992A and B?
15 A Receipts, a parking receipt and gas receipt.
16 Q Are those the items that you took from the truck that day?
17 A Yes.
18 Q How do you recognize them?
19 A My name is listed on the envelope as being the person who
20 collected those.
21 (Continued on next page)
22
23
24
25
2434
1 Q Do you recall taking those from the truck that day?
2 A Yes.
3 MR. BUTLER: I move Government Exhibit 929A and B
4 into evidence, your Honor.
5 MR. SCHMIDT: May I see those before they go into
6 evidence, please?
7 THE COURT: Yes.
8 (Pause)
9 MR. SCHMIDT: No objection.
10 THE COURT: 992A and B received.
11 (Government's Exhibits 992A and B received in
12 evidence)
13 MR. BUTLER: No further questions, your Honor.
14 THE COURT: Anything else for this witness?
15 Thank you, agent. You may step down. The government
16 may call its next witness.
17 MR. BUTLER: The government calls agent Susan
18 Mitchell, your Honor.
19 SUSAN MARIE MITCHELL,
20 called as a witness by the government,
21 having been duly sworn, testified as follows:
22 DIRECT EXAMINATION
23 BY MR. BUTLER:
24 Q Agent Mitchell, how are you employed?
25 A I'm sorry?
2435
1 Q How are you employed, Agent Mitchell?
2 A I'm employed as a Special Agent with the FBI.
3 Q How long have you been with the FBI?
4 A For five years.
5 Q What office are you located in?
6 A The Washington field office.
7 Q Are you also a member of the evidence response team from
8 the Washington field office?
9 A I am.
10 Q Were you one of the members that was sent to Nairobi,
11 Kenya in August of 1998?
12 A Yes, I was.
13 Q Drawing your attention to noon on September 7, 1998, do
14 you recall where you were on that date?
15 A Yes, I was in CID headquarters.
16 Q What were you assigned to do at that time?
17 A We were assigned to search a white sports utility vehicle.
18 Q When you say a sports utility vehicle what?
19 A A small white truck.
20 Q And what was your role in that search that day?
21 A I was photographer and the seizing agent.
22 Q What does a seizing agent do?
23 A The seizing agent is required to collect the evidence as
24 it's recovered and then bring that evidence to a cleared
25 storage facility.
2436
1 Q Before conducting the search what preparations did you
2 take?
3 A Two agents were placed in Tyvek suits to protect it
4 against contamination against the search.
5 Q Did you do anything with respect to the Tyvek suits?
6 A I assisted the two agents in conducting control swabbings
7 of their suits, and I collected those control swabbings and
8 placed them in a glass container, marked them for evidence.
9 Q I approach with what has previously been marked as
10 Government Exhibits 962, 963, 964, 966, 967, 968 and 976 and
11 ask you if you recognize those items.
12 A Yes, I do.
13 Q What are they?
14 A They are the glass containers holding the controlled swabs
15 that we took that day from the truck.
16 Q How do you recognize them?
17 A I recognize them from the containers themselves and the
18 writing on the envelopes.
19 MR. BUTLER: Move for the admission of those exhibits
20 at this time, your Honor.
21 THE COURT: Yes, received.
22 (Government's Exhibits 962, 963, 964, 966, 967, 968
23 and 976 received in evidence)
24 Q Now, as photographer did you also take photographs of the
25 truck?
2437
1 A I did.
2 MR. BUTLER: If we could please display just for
3 identification purposes what's been previously marked as
4 Government Exhibit 960C.
5 Q Do you recognize what is depicted in Government Exhibit
6 960C?
7 A Yes, the bed of the truck we searched.
8 Q Is that a fair and accurate representation of the bed of
9 the truck?
10 A Yes, it is.
11 MR. BUTLER: Your Honor, I move Government Exhibit
12 9606C.
13 THE COURT: Received.
14 (Government's Exhibit 960C received in evidence)
15 Q Now, if we can display that.
16 Agent Mitchell, do you recognize something in the bed
17 of the truck?
18 A Yes, it's a brown burlap covering on the bed of the truck.
19 Q When you first encountered the truck was that rug in the
20 back of the truck?
21 A Yes, it was.
22 Q What did you do with respect to that rug?
23 A I seized the burlap covering and with the assistance of
24 another agent we cut it in half, marked the cut, placed two
25 halves into containers and sealed and marked those containers.
2438
1 Q I'm going to place before you what has been previously
2 marked as Government Exhibits 982 and 986 for identification.
3 I'll ask you whether you recognize these items.
4 A Yes, I do recognize them.
5 Q What is Government Exhibit 982?
6 A 982 is, this is the container with the brown burlap, the
7 half of the brown burlap covering.
8 Q How do you recognize Government Exhibit 982?
9 A I was able to review the covering inside here and I
10 recognize it from the container itself and the writing on the
11 container.
12 Q Did you also have an opportunity earlier to examine the
13 contents?
14 A Yes, I did previously I was able to review the items
15 inside.
16 Q And the other exhibit 986, what is 986?
17 A This is the knife blade that we used to cut the carpet in
18 half to place in the two containers.
19 MR. BUTLER: Your Honor, I move the admission of
20 Government Exhibits 982 and 986 at this time.
21 THE COURT: Received.
22 (Government's Exhibits 982 and 986 received in
23 evidence)
24 Q Now, did you also -- were certain items also removed from
25 the cab area of the truck?
2439
1 A Yes. After we finished the bed of the truck we moved to
2 the cab of the truck, and the two agents in Tyvek suits then
3 proceeded to do swabbings.
4 Q Do you recall in particular certain items that you removed
5 from the cab area of the truck?
6 A We removed a dashboard cover, carpet-type dashboard cover
7 and we also removed the floor mats.
8 MR. BUTLER: If we could display what has been
9 previously entered into evidence as Government Exhibit 960B.
10 Q Agent Mitchell, if you can just maybe point to the screen
11 and tell us where the items that you removed came from in the
12 cab?
13 A The dashboard cover is here, the red carpet dashboard
14 cover we removed that and the driver's side floor mat was
15 vinyl and we removed that as well.
16 Q I place before you what has been previously marked for
17 identification as Government Exhibits 983, 987 and 989. Do
18 you recognize those items?
19 A Yes, I do.
20 Q How do you recognize them?
21 A I had previously been able to review the contents in these
22 two containers, one being the vinyl floor mat and one being
23 the dashboard cover, and I also recognize them from the
24 containers themselves and the writing on the container.
25 MR. BUTLER: Your Honor, I move those exhibits at
2440
1 this time.
2 THE COURT: 983, 987, 989 received.
3 (Government's Exhibits 983, 987 and 989 received in
4 evidence)
5 Q Now, lastly, did you seize any papers from the truck?
6 A Yes. After the swabbings were completed and I entered the
7 truck to do a search I did seize documents from the vehicle.
8 Q Do you recall what documents you seized from the vehicle?
9 A Yes. There were two insurance documents in the glove box
10 of the vehicle.
11 Q I put before you what has been previously marked as
12 Government Exhibit 991A and B for identification. Do you
13 recognize Government Exhibit 991A and B?
14 A Yes, I do. It's insurance certificate in the name of
15 Fahid Mohamed Ally.
16 Q How do you recognize it?
17 A I recognize it, I recognize the documents and I recognize
18 the writing on the envelope.
19 MR. BUTLER: I would move Government Exhibits 991A
20 and B at this time, your Honor.
21 THE COURT: Yes. Received.
22 (Government's Exhibits 991A and B received in
23 evidence)
24 Q Now, after you collected all of this evidence what did you
25 do with it?
2441
1 A As seizing agent I collected all the evidence and brought
2 it to the secure temporary evidence storage facility there in
3 CID headquarters.
4 MR. BUTLER: No further questions.
5 THE COURT: Anything?
6 MR. WILFORD: Yes, your Honor.
7 THE COURT: Yes, Mr. Wilford on behalf of the
8 defendant Odeh.
9 CROSS-EXAMINATION
10 BY MR. WILFORD:
11 Q Good morning, Agent Mitchell.
12 A Good morning.
13 Q How you doing?
14 A I'm doing well.
15 Q Good. Now, when you were in Kenya you just mentioned the
16 temporary secure storage facility. That was located inside
17 CID headquarters?
18 A Yes, it was.
19 Q And that was a room that was designated by the CID for the
20 use of the FBI and for evidence collection and storage?
21 A Correct.
22 Q Now, you had a key to that room, isn't that correct?
23 A I did.
24 Q Did anybody else have a key to that room?
25 A It was my understanding that the Special Agent in charge
2442
1 had a key as well as the CID representative.
2 Q Who was the Special Agent in charge?
3 A Sheila Horan.
4 Q And who was the CID representative who had a key?
5 A I was not provided that name.
6 Q Do you know his rank or her rank?
7 A No.
8 Q Did you ever meet the person?
9 A No, I did not.
10 Q Now, when you were provided the key you were provided a
11 key by Special Agent Horan, isn't that correct?
12 A I don't recall who I was provided the key by. It was a
13 member. It could have been a member of our ERT team who was
14 previously there. I don't recall.
15 Q Now, the CID also had access to that room, is that
16 correct?
17 A That's true.
18 Q And did they come and go out of that room?
19 A No, I never, I never encountered them coming in and out of
20 that room. They did have a representative did have a key, but
21 I never encountered them coming in and out of that room.
22 Q But you weren't at the room twenty-four hours though, is
23 that correct?
24 A No, I was not.
25 Q And it was located in CID headquarters, isn't that
2443
1 correct?
2 A We were in Kenya, yes.
3 Q There wasn't a guard or anything posted outside of the
4 door was there?
5 A No, it was a locked room but no guard.
6 Q Was there any type of log in and log out procedure in
7 effect at the temporary secure storage facility for evidence?
8 A Yes, there was.
9 Q Who maintained the log?
10 A The ERT team and it was myself as the leader maintained
11 that log.
12 Q So you personally maintained the log?
13 A Yes.
14 Q Nothing went in or went out without being signed and then
15 you knowing about?
16 A Correct.
17 MR. WILFORD: Thank you. Nothing further.
18 THE COURT: Thank you, agent. You may step down.
19 MR. BUTLER: I'm sorry. One question, your Honor.
20 REDIRECT EXAMINATION
21 BY MR. BUTLER:
22 Q As far as your maintaining the key your oversight of the
23 evidence room, when did that begin?
24 A Approximately August 27th. I arrived in country on August
25 27th.
2444
1 MR. BUTLER: No further questions, your Honor.
2 MR. WILFORD: Judge, just if I may.
3 RECROSS-EXAMINATION
4 BY MR. WILFORD:
5 Q Agent Mitchell, to your knowledge was the secure facility
6 set up before the 27th?
7 A Yes, it was as far as, it was set up when I arrived.
8 Q So someone else had the key before you got there?
9 A Yes.
10 MR. WILFORD: Thank you.
11 (Witness excused)
12 MR. KARAS: Your Honor, the government calls Mitchell
13 Hollars.
14 MITCHELL L. HOLLARS,
15 called as a witness by the government,
16 having been duly sworn, testified as follows:
17 DIRECT EXAMINATION
18 BY MR. KARAS:
19 Q Good morning, sir.
20 A Good morning.
21 Q If you could tell us what you do for a living?
22 A I'm employed by the Federal Bureau of Investigation in the
23 latent print unit.
24 Q For how long have you been with the Federal Bureau of
25 Investigation?
2445
1 A For almost 25 years.
2 Q How many of those twenty-five years have you been in the
3 latent print unit?
4 A Sixteen.
5 Q What is your title currently?
6 A Fingerprint specialist.
7 Q Can you tell us a little bit about the training you've
8 received in fingerprints?
9 A Sure. I first had a 13 week course for the
10 classification, comparison and identification of inked
11 fingerprints. I then had one year training in the location,
12 the preservation, the development and comparison of latent
13 fingerprints.
14 Since that time I've attended numerous educational
15 seminars sponsored by the International Association for
16 Identification or the IAI as well as local and state chapters
17 of the same organization. I attended a one-week course that
18 dealt in the comparison and identification of palm prints
19 which was taught by the Mississippi state crime lab. I've
20 also attended or participated in exchange visits with the Home
21 Office in England, the RCMP, the Royal Canadian Mounted Police
22 in Canada, as well as the Baltic states, and attended
23 international symposiums on latent print development as well.
24 Q Have you published articles regarding latent print
25 detection?
2446
1 A Yes.
2 Q Have you participated in the training of others yourself?
3 A Yes.
4 Q Now, can you tell the jury what an inked fingerprint is?
5 A On the underneath side of your fingers or palms there is
6 raised portions of skin which is referred to as friction ridge
7 skin. And inked fingerprint is a recording of this friction
8 ridge skin. It's usually accomplished by applying a thin film
9 of black printer's ink and then transferring this image to a
10 fingerprint card. It can also be recorded electronically.
11 Q Can you tell us what a latent fingerprint is?
12 A A latent fingerprint is a reproduction of the same
13 friction ridges left whenever an item has been touched.
14 Latent print's usually invisible, it's left by chance, when
15 you have handled something. Latent prints are usually
16 invisible and they will need some type of development
17 technique to make the prints visible.
18 Q Now, can you describe for us the processes that you use to
19 develop latent fingerprints on both nonporous and porous
20 items?
21 A All specimens are at first examined using a visual
22 examination, because sometimes a contaminant may be present on
23 fingers and transfers this image to that item. The second
24 process is the laser or an alternate light source examination
25 which will cause a fingerprint if it's contaminated with
2447
1 certain B vitamin components, for instance, because it's flesh
2 when it's exposed to a laser light or an alternate light
3 source. After those two examinations have been completed,
4 specimens are separated according to substrate or specimen
5 type, meaning a porous or a nonporous. Nonporous is a surface
6 somewhat like a glass, painted wood, et cetera, where the
7 prints left on the surface itself.
8 Those processes that we use at that point would be
9 first the Cyanoacrylate process or the super glue process,
10 followed by a fluorescent dye which will adhere to the super
11 glue, and then when that item is exposed to a laser and an
12 alternate light source, the prints will then fluoresce.
13 The next step would be to apply a fingerprint powder.
14 If it's a porous item, after the visual and laser exams have
15 been conducted we first use the DFO process which will react
16 with amino acids present in a fingerprint and when this item
17 has been exposed to the light source the prints tend to
18 fluoresce.
19 The next process would be the Ninhydrin process which
20 also reacts with amino acids that are present, but causes the
21 print to develop usually a pink or purple color. The next
22 process will be the physical developer process which reacts
23 with lipid identifications or the fat that's present in the
24 fingerprint residue and would develop those prints.
25 Q Mr. Hollars, you mentioned porous items. Can you tell us,
2448
1 give us some examples of porous items?
2 A Porous is paper, cardboard, untreated wood, any substance
3 that the print would actually be absorbed into the specimen.
4 The best scenario is if you put a drop of water on it and you
5 saw it absorb that water that would be considered a porous
6 item. If it beaded on the surface it would be a nonporous
7 item.
8 Q Mr. Hollars, did there come a time when you were asked to
9 compare or assist in the comparison of latent prints with
10 inked prints in connection with the embassy bombing in
11 Nairobi, Kenya?
12 A Yes.
13 MR. KARAS: May I approach the witness, your Honor?
14 THE COURT: Yes.
15 Q Now, Mr. Hollars, I placed before you what have been
16 marked for identification as Government Exhibits 931, 994,
17 789, 697, 584 and 711. Can you tell us what those are,
18 please?
19 A It's a summary of the results of the examinations that
20 were conducted in connection with this case.
21 Q Did you compare those summaries with the notes and the
22 reports you prepared detailing the comparisons of latents and
23 inked fingerprints?
24 A Yes.
25 Q And do those summaries accurately reflect the results of
2449
1 your comparison?
2 A Yes.
3 Q Or I should say some of your comparisons?
4 A Some of them, yes.
5 MR. KARAS: Your Honor, we offer Government Exhibits
6 931, 994, 789, 697, 584 and 711.
7 MR. BAUGH: No objection.
8 THE COURT: Received.
9 (Government's Exhibits 931, 994, 789, 697, 584 and
10 711 received in evidence)
11 Q Now, Mr. Hollars, if you could turn to, and if we could
12 display the first page of 931, and if you could just focus for
13 a minute on the very top the listing of the columns, and first
14 at the top you see where it says Harun's house.
15 The description there, is that something that's based
16 on your knowledge or what you were told?
17 A It's what I was told.
18 Q And the first column there, FBI number, can you tell us
19 how that's assigned?
20 A Whenever we receive a specimen or a piece of what's
21 evidentiary evidence to examine it has to be assigned a
22 number, a tracking number that will follow it throughout our
23 system. It's either assigned a K or a Q number, accordingly.
24 Q And can you tell us about the column labeled, item
25 description?
2450
1 A This is a description that was given to the item before it
2 was submitted to me.
3 Q And the next column, processes?
4 A The processes are the processes that I used in connection
5 with that particular Q or K item.
6 Q And those are the processes you described earlier?
7 A Yes.
8 Q And the column labeled, number of prints I gather means
9 the number of prints you found on the item?
10 A That's correct.
11 Q The next column where it says, number of IDs, could you
12 explain that please?
13 A The number of IDs indicate the number of prints. Even
14 though there was three prints that were developed on that
15 item, only two of those prints were identified with an
16 individual.
17 Q And the person who was identified is that the last column?
18 A That's correct.
19 Q Now, taking a look at that first row, FBI number K33 and
20 Government Exhibit 903, the column under processes can you
21 tell us what SG stands for?
22 A It's just an abbreviation for super glue or the
23 cyanoacrylate process.
24 Q And the initials there NIN?
25 A It's abbreviation for the Ninhydrin process.
2451
1 Q And below that where it says tape in parenthesis, and then
2 ram and PWD?
3 A It could be the ram stands for the fluorescent dye that
4 was used in this particular assistance. It's a combination of
5 rotamin and MBD and then the PWD is an abbreviation for
6 fingerprint powder.
7 Q Now, the next column over where it says page 3, ID number
8 1, and then later on page 20, ID number 6, can you explain
9 where it says ID number 1 and ID number 6?
10 A Sure. An inked fingerprint card when the prints are
11 recorded they start with the right thumb and give that the
12 designation of number 1 through the little finger which is
13 number 5. The exact same thing is done with the left hand
14 with the left thumb being number 6 and the left little being
15 number 10. That indicates the finger number that that print
16 was actually identified with.
17 Q Now, if we could turn to page 2 of Government Exhibit 931.
18 And focus on the last row there that begins K405.1.
19 Mr. Hollars, if you could just tell us the, describe
20 for us the fourth column, the processes that you used to
21 identify the fingerprint in that row?
22 A The V stands for the visual examination. The L stands for
23 the laser or alternate light source examination. DFO is the
24 fluorescent compound that reacts with the amino acids and the
25 N is just an abbreviation for the Ninhydrin process.
2452
1 Q And on that row does that indicate that you found one
2 print for Mohamed Rashed Daoud Al-'Owhali?
3 A Yes.
4 Q Mr. Hollars, I'm going to approach and show you what has
5 been marked for identification as Government Exhibit 913-LP.
6 Can you tell us what that exhibit is?
7 A It's an enlargement, one showing the latent print that was
8 developed on this K405.1 and the other is an enlargement of
9 the corresponding area of the inked fingerprint that appeared
10 on the fingerprint card it was identified with.
11 Q And according to the summary chart it's ID number 1 so
12 that would be the --
13 A The right thumb.
14 MR. KARAS: Your Honor, we offer Government Exhibit
15 913-LP.
16 THE COURT: Received.
17 (Government's Exhibit 913-LP received in evidence)
18 MR. KARAS: Your Honor, may I ask that Mr. Hollars
19 step down?
20 THE COURT: Yes.
21 MR. KARAS: Mr. Hollars, would you like to step down.
22 (Witness left stand)
23 Q Now, Mr. Hollars, if you could explain to the jury the
24 comparison that's contained in the enlarged print there that's
25 in that exhibit?
2453
1 A Sure. The chart that appears on your right is an
2 enlargement of the latent print that was developed on item
3 K405.1. The one on your left marked ink fingerprint
4 represents the corresponding area of the right thumb
5 impression appearing on the card with the name of Al-'Owhali.
6 The black lines represent the friction ridges that I
7 spoke of earlier. The white spaces represent the furrows or
8 the area of the plane friction ridges as appear on fingers.
9 The red lines and numbers are placed there to indicate some of
10 the corresponding characteristics that appear in the two
11 prints.
12 Now, when doing an identification the first thing we
13 take into consideration is the ridge flow, ridge structure,
14 ridge direction. For instance, this one indicates a
15 whirl-type pattern. The first analysis that we would do would
16 be to look for a fingerprint that has a whirl-type pattern.
17 You further break that down then into the
18 characteristic being a ridge that will end, a ridge that will
19 divide into two ridges or a dot. These points or these
20 characteristics should appear in the same location in the two
21 prints as well as the unit relationship being if there is two
22 ridges between point 1 and 2 and 1. There should be two
23 ridges between point 1 and 2 in the second one. That's how we
24 go about doing our comparison.
25 So beginning in the chart marked latent fingerprint
2454
1 we have a ridge that ends in the upper center of the
2 photograph. It's marked as point number 1. From point number
3 1 moving across one ridge to the second ridge, this ridge also
4 ends which is marked as point number 2. From point number 2
5 moving to the right across one, two, three, four, five, six
6 ridges, we find a ridge that ends which is marked as point
7 number 3.
8 Moving to the chart marked inked fingerprint in the
9 upper center portion of the fingerprint is a ridge that ends,
10 which is marked as point number 1. From point number 1,
11 moving to the left across one ridge is another ridge that ends
12 which is marked as point number 2. From point number 2 moving
13 to the right across the six ridges we find a ridge that ends
14 which is marked as point number 3.
15 The same prints in the same relative position on the
16 fingerprint as well as the same unit relationship has appeared
17 in these three characteristics. Point number 3 continuing
18 with the ink fingerprint, we tried to locate additional points
19 or characteristics that are present.
20 Moving to the left across four ridges we have a ridge
21 that ends which is marked as point number 4. From point
22 number 4 moving downward we have a short ridge, one end of
23 which is marked as point number 5. The other end which is
24 marked as point number 6. Moving to the left across one ridge
25 we have another ridge that ends which is marked as point
2455
1 number 7.
2 Going to the latent fingerprint we should find the
3 same characteristics. So moving across the four ridges from
4 point number 3 we find point number 4, which is a ridge that
5 ends in an upward direction. Following point number 4
6 downward we find a short ridge, one end of which is marked as
7 point number 5, the second which is marked as point number 6.
8 Moving from the short ridge to the left across one
9 ridge we have a ridge that ends which is marked as point
10 number 7. Using this method of comparison points that I
11 illustrated as well as others that are not marked in these two
12 photographs that I determined that the latent print that was
13 developed on K405.1, and the right thumb impression that
14 appeared on the fingerprint card bearing the name of
15 al-'Owhali were made by one and the same individual.
16 Q Now, the indication up to 13 represents that you found 13
17 identical points of comparison?
18 A No. I marked 13. There is additional ones that are
19 present.
20 Q And typically how many points of identification in common
21 do you require before you determine that the fingerprints are
22 identical?
23 A Seven.
24 Q Now, I'd like to show you what has been marked for
25 identification as Government Exhibit 696-LP. Is that an
2456
1 enlargement of a comparison between the inked fingerprint
2 identified as Mr. Odeh and a latent fingerprint that was
3 marked as Q788.5?
4 A Yes.
5 Q Now, if you could explain to the jury the basis upon the
6 comparison that is contained in 696?
7 A Sure. Once again the black lines represent the friction
8 ridges. The red lines numbers just point out some of the
9 characteristics that are present in the two photographs.
10 We'll begin with the chart marked latent fingerprint.
11 This is an enlargement of fingerprint that was present on a
12 lift which is designated Q788.5. Beginning in the upper
13 center of the photograph there is a ridge that ends which is
14 marked as point number 1. Moving downward across the five
15 ridges or six ridges -- five ridges, there is a ridge that
16 ends which is marked as point number 2. Directly underneath
17 point number 2 is a short ridge, the upper end of which is
18 marked as point number 3.
19 Moving to inked fingerprint in the upper center
20 portion is a ridge that ends which is marked as point number
21 1. From point number 1 moving down across the five ridges we
22 have a ridge that ends which is marked as point number 2.
23 Directly underneath point number 2 is a short ridge, the upper
24 end of which is marked as point number 3.
25 Moving to the right, we'll continue with the inked
2457
1 fingerprint, and this represents the right thumb print as it
2 appears on the fingerprint card bearing the name of Mr. Odeh.
3 From point number 3, moving to the right we see a
4 ridge that divides into two ridges. This is marked as point
5 number 4.
6 Directly underneath 4 with one intervening ridge is
7 another ridge that divides, which is marked as point number 5.
8 We follow the lower portion of that ridge to the left dropping
9 down two ridges, we have a ridge that ends which is marked
10 point number 6.
11 From point number 6 moving upward across one ridge we
12 have an ending ridge which is marked as point number 7. Going
13 back to the latent fingerprint, from point number 3, moving to
14 the right we have a ridge that divides into two ridges, which
15 is marked as point number 4.
16 From point number 4 dropping down across one
17 intervening ridge, the ridge that divides into two, which is
18 marked as point number 5.
19 Following the lower ridge from point number 5 to the
20 left, dropping down across two ridges is a ridge that ends
21 which is marked as point number 6. From point number 6 moving
22 upward across one ridge we have a ridge that ends which is
23 marked as point number 7.
24 So once again using these characteristics that I've
25 marked illustrated some additional ones that are unmarked in
2458
1 these two photographs and using this method of comparison that
2 I determined that the latent prints that was present on the
3 lift marked as Q788.5 and the right thumb impression that per
4 on the fingerprint card bearing the name of Mr. Odeh were made
5 by one and the same individual.
6 MR. KARAS: Thank you, Mr. Hollars.
7 Your Honor, at this time we offer Government Exhibits
8 696LP.
9 MR. BAUGH: No objection.
10 THE COURT: Received.
11 (Government's Exhibit 696LP received in evidence)
12 (Witness resumed stand)
13 MR. KARAS: Your Honor, we have a stipulation that
14 Q788.5 which was the subject of the enlargement is the latent
15 print lift that was testified to by Agent John Hughes
16 yesterday afternoon.
17 I have no further questions.
18 MR. WILFORD: Your Honor, I have some questions.
19 THE COURT: Yes.
20 CROSS-EXAMINATION
21 BY MR. WILFORD:
22 Q Good morning, Agent Hollars.
23 A Good morning.
24 Q How are you?
25 A I'm fine.
2459
1 Q Sir, you conducted along with Agent Belcastro several
2 examinations of latent fingerprints that were recovered from
3 Kenya, isn't that correct?
4 A That's correct.
5 Q And during the course of those comparisons what methods
6 did you use?
7 A What methods did I use for comparison?
8 Q Comparting the prints?
9 A The method that I just illustrated is the method that we
10 used to do a comparison an actual comparison, the same method
11 I demonstrated to you just a second ago.
12 Q That's strictly a visual comparison?
13 A Are you asking the processes?
14 Q The processes that you used?
15 A Okay. On a particular item?
16 Q Yes.
17 A Which particular item?
18 Q Well, for instance, there was a latent print that you
19 examined, K538. It's not one that you testified about on
20 those charts. This is K538. Would you like to see the report
21 to refresh your recollection or are you prepared to testify
22 about it?
23 A It would help if I may see the report.
24 MR. WILFORD: Your Honor, may I approach the witness?
25 THE COURT: Yes.
2460
1 Q I'm showing the witness what is previously marked 3522-3.
2 (Pause)
3 THE COURT: Is there a pending question?
4 MR. WILFORD: He was referring to the report, your
5 Honor.
6 Q Have you had an opportunity to complete your reference to
7 the report?
8 A Yes.
9 Q What processes did you undertake in examining the latent
10 print, that particular latent print K538?
11 A The particular print that's present here?
12 Q Yes.
13 A I do not know the process that was used to develop it.
14 It's not indicated in the report.
15 Q Well, during the course of your examination of all these
16 latent prints what processes were used?
17 A The processes that were used on this book would have been
18 the visual examination, the laser or inherent fluoresce
19 examination and at least a Ninhydrin process.
20 Q Did you use any kind of computer comparative analysis?
21 A No.
22 Q Now, sir, the latent print that was recovered from, that
23 has been designated as K538 that was a print that was
24 recovered from an exercise book that was recovered in Mr.
25 Odeh's home, isn't that correct?
2461
1 A I do not recall.
2 Q Take a look at that document.
3 A It still doesn't indicate where it was retrieved from.
4 Q Look at the third page, please.
5 A Third page just states that it was a faded blue book
6 marked exercise book.
7 Q Okay.
8 MR. WILFORD: If I may have a moment to approach the
9 witness?
10 THE COURT: Yes.
11 Q Showing you the witness 3523-5. The book was marked Crown
12 exercise book, right?
13 A That's correct.
14 Q And on that book a fingerprint was recovered; is that
15 correct?
16 A That's correct.
17 Q And you did an analysis to compare that fingerprint to Mr.
18 Odeh's fingerprint, isn't that correct?
19 A Yes.
20 Q And as a result of that comparison that print, the latent
21 print you recovered did not match Mr. Odeh, isn't that
22 correct?
23 A That's correct.
24 Q Now, sir, you also lifted a print which was known as
25 K554.3. Do you remember that? Not lifted, but compared that
2462
1 print. And that's -- I think you have that one up there,
2 don't you?
3 A Yes.
4 Q That's the chart that you have, right? 554, is that your
5 chart?
6 A That's correct.
7 MR. WILFORD: Could we have that displayed.
8 A It's not a chart. This chart here.
9 Q What number is that?
10 A It's exhibit 711.
11 MR. WILFORD: Could we have 711, please.
12 Q And you did a comparison of that latent print; is that
13 correct?
14 A That's correct.
15 Q And you compared it to Mr. Odeh's, isn't that correct?
16 A I do not recall.
17 Q Well, who did you compare it to?
18 A Once the print was identified it was not compared with
19 anyone after that point.
20 Q So you had a person that it was identified as belonging
21 to, isn't that correct?
22 A On K554.3, yes.
23 Q And that particular item is identified as being
24 Mr. Moustafa Ali Haf's print, isn't that correct?
25 A Yes.
2463
1 Q Ali Elbishy I'm sorry?
2 A Ali Elbishy.
3 Q Isn't it a fact, sir, that those prints were recovered
4 from the residence of Mohammed Odeh?
5 A I don't know.
6 MR. WILFORD: May I approach the witness with 3522-5.
7 Q Does that refresh your recollection, sir?
8 A Yes.
9 Q Could you give us an answer?
10 A The indications are that this item, K554.3 was recovered
11 from the residence of Odeh.
12 Q Now, sir, did you have an opportunity to examine latent
13 fingerprints that were recovered from airline tickets and
14 passports?
15 A Yes.
16 Q And during the course of that examination did you recover
17 any fingerprints that were matched to Mr. Odeh?
18 A None that I recall, no.
19 Q Now, did you have an opportunity, sir, to conduct a
20 comparison of prints, latent prints that were recovered from a
21 Teach Yourself Swahili book?
22 A Yes.
23 Q Do you remember that?
24 A Somewhat, yes.
25 Q And that book was recovered from Mr. Odeh, isn't that
2464
1 correct?
2 A Once again I don't recall.
3 MR. WILFORD: Your Honor, if I may have just one
4 moment. I'm sorry.
5 (Pause)
6 The government will stipulate that was in fact
7 recovered from Mr. Odeh.
8 Q Now, during the course of that comparison you had 40
9 latent prints to compare, isn't that correct?
10 A I don't recall the exact number.
11 MR. WILFORD: May I approach the witness, your Honor?
12 THE COURT: Yes.
13 Q Showing the witness 3522-49. Does that refresh your
14 recollection, sir?
15 A Yes.
16 Q There were about 40 latents that you had to work with?
17 A Not just on that book itself. There were two items.
18 Q Two items?
19 A Yes.
20 Q And 25 of them matched Mr. Odeh, isn't that correct?
21 A That's correct.
22 Q And what was the other item that the prints came off of?
23 A It was Umsofa magazine.
24 Q Some kind of magazine?
25 A Yes.
2465
1 Q Now, during the course of your investigation you examined
2 fingerprints from -- withdrawn -- from a wide variety of
3 locations, isn't that correct, from Kenya, from people's
4 homes, from vehicles, a wide array of locations, isn't that
5 correct?
6 A The indications were it was from a different area. We did
7 all in Washington, I did.
8 Q I know you don't know personally where they came from
9 because you didn't lift them, but you received from that
10 report and you relied on that, is that correct?
11 A That's right.
12 Q These came from various locations in Kenya, from people's
13 homes, from vehicles from people's personal possessions, isn't
14 that correct?
15 A That's correct.
16 Q And that, in fact, occurred not only with items that were
17 seized or found in August of 1998, but also in September of
18 1998, and items that were also seized in 1999. Isn't that
19 correct?
20 A Yes, pretty much so.
21 Q And through all of those examinations would it be fair to
22 say that the people who owned or possessed these items all had
23 Arabic names?
24 A If I recall, yes.
25 MR. WILFORD: Thank you. Nothing further.
2466
1 MR. BAUGH: No questions.
2 MR. KARAS: Brief redirect, your Honor.
3 REDIRECT EXAMINATION
4 BY MR. KARAS:
5 Q Now, Mr. Hollars, you were asked some questions about the
6 exhibit marked as FBI number K538. Do you recall that?
7 A 538?
8 Q Yes.
9 A Yes.
10 Q And that's the exercise book according to the report?
11 A Correct.
12 Q Within that document you only found one identifiable
13 latent print; is that correct or not?
14 A That's correct.
15 Q And where, on which page was that one print found?
16 A It was on page 1.
17 Q Now, if somebody touches something, even a piece of paper
18 do they always leave a fingerprint?
19 A No.
20 Q But you were asked the question about another document
21 where you identified the print of a Moustafa Ali Elbishy. Do
22 you recall that?
23 A Yes.
24 Q And you indicated that once you identified the print as
25 belonging to Mr. Elbishy you stopped doing any other
2467
1 comparison. Can you tell us why?
2 A Fingerprints are permanent and are individually unique.
3 Fingerprint is permanent in the fact that these ridges are
4 formed before birth and they are going to remain the same
5 throughout your life, so they are individually unique and this
6 ridge arrangement as I demonstrated to you there, is unique
7 not only to the individual, but to an individual finger of an
8 individual.
9 So once the print is identified it would not be
10 identified with someone else at that point.
11 MR. KARAS: Thank you. No further questions.
12 MR. WILFORD: If I may, your Honor?
13 THE COURT: Yes.
14 RECROSS-EXAMINATION
15 BY MR. WILFORD:
16 Q With respect to exhibit K538, you did compare those prints
17 however to Mr. Odeh, isn't that correct?
18 A Yes.
19 Q And there was no match?
20 A No match.
21 Q And, sir, you did in fact compare the prints that you
22 recovered in the book that was seized from Mr. Odeh Teach
23 Yourself Swahili, isn't that correct?
24 A Would you repeat that?
25 Q The book that was seized from Mr. Odeh, Teach Yourself
2468
1 Swahili, you did compare the books on this print, right?
2 A Yes.
3 Q And they did in fact match Mr. Odeh?
4 A Yes.
5 Q 25 times, isn't that correct?
6 A Twenty-five, yes.
7 MR. WILFORD: Thank you sir. Nothing further.
8 MR. KARAS: Very brief, your Honor.
9 REDIRECT EXAMINATION
10 BY MR. KARAS:
11 Q Mr. Hollars, the exhibit K538 how many identifiable prints
12 did you find in that document?
13 A One.
14 Q And when you made the comparison did you compare that one
15 print to several individuals in addition to Mr. Odeh?
16 A Yes.
17 Q Can you tell us some of the individuals -- well, let me
18 ask you this, did you compare it to Mr. Moustafa Ali Elbishy?
19 A Yes.
20 Q And did you compare the prints to Abdilahi Mohamed Fazul?
21 A Yes.
22 Q And did you compare the prints to Fahid Mohamed Ally?
23 A Yes.
24 Q Did you compare the prints to Sheikh Ahmed Salim Swedan?
25 A Yes.
2469
1 Q Did you find any identifications among those individuals?
2 A No.
3 MR. KARAS: Nothing further.
4 MR. WILFORD: The final question I have, your Honor.
5 RECROSS-EXAMINATION
6 BY MR. WILFORD:
7 Q You have no idea who that print belongs to, is that
8 correct, sir?
9 A No.
10 MR. WILFORD: Thank you.
11 THE COURT: Thank you, agent. You may step down.
12 (Witness excused)
13 THE COURT: We'll take our mid-morning recess.
14 (Recess)
15 (Continued on next page)
16
17
18
19
20
21
22
23
24
25
2470
1 (Jury present)
2 THE COURT: The government may call its next witness.
3 MR. KARAS: Your Honor, the government calls Kelly
4 Mount.
5 KELLY MOUNT,
6 called as a witness by the government,
7 having been duly sworn, testified as follows:
8 DIRECT EXAMINATION
9 BY MR. KARAS:
10 Q Good afternoon. Can you tell us how you are employed.
11 A I am employed as a forensic chemist with the FBI
12 laboratory.
13 Q For how long have you been a forensic chemist?
14 A Almost 15 years now. In June it will be 15 years.
15 Q All with the FBI?
16 A All with the FBI.
17 Q Can you tell us a little about your educational
18 background.
19 A I have a bachelor of science degree in chemistry from East
20 Kentucky University, as well as a master's in forensic science
21 from George Washington University.
22 Q Can you tell us about some training you received in
23 chemistry since your formal education.
24 A Certainly. Since I have been at the FBI these past 15
25 years now, I have had numerous occasions to attend various
2471
1 courses which are related to various analytical techniques
2 that we use in the laboratory, both classes taught at the FBI
3 academy as well as with various vendors, instrument-specific
4 manufacturers. Also during that time I have had occasion,
5 many occasions to attend numerous conferences which are
6 related to various scientific areas, including explosives
7 analysis.
8 Q Have you made presentations yourself at some of these
9 conferences?
10 A I certainly have, yes.
11 Q Have you published any articles in the field of chemistry?
12 A Yes, I have. I have coauthored a number of papers in the
13 area of explosives analysis which have appeared in various
14 scientific journals.
15 Q Can you briefly describe for us the difference between a
16 low explosive and a high explosive?
17 A Yes. A low explosive is an explosive which we use the
18 term it deflagrates. It burns. Also, the reaction, the
19 chemical reaction that takes place within the explosives
20 travels at a rate less than the speed of sound.
21 Q And a high explosive?
22 A A high explosive is an explosive which we use the term
23 detonates. It requires a shock to initiate, and the reaction,
24 chemical reaction in this travels greater than the speed of
25 sound.
2472
1 Q Are you familiar with the phrase explosive residue?
2 A I am.
3 Q Can you tell us what that is?
4 A An explosive residue is simply a residue, something that
5 you can't see visually or microscopically as it relates to
6 explosives. These can be either residues from a post-blast
7 event or preblast.
8 Q As a forensic chemist, is one of your jobs to detect
9 explosive residue on items?
10 A Yes, it is.
11 Q Can you tell us about the procedure that you employ to
12 detect explosive residue in items.
13 A Certainly. In the FBI we have what we call standard
14 operating procedures. We analyze every case that comes in the
15 laboratory in which explosive analysis is requested in the
16 same manner. The standard operating procedure begins with,
17 the first thing we do is simply a visual and/or a microscopic
18 examination of the item.
19 Q After you do the visual or microscopic examination, what
20 is the next step in the process?
21 A Depending upon what we find, if we find something that we
22 think we want to analyze further by this means, we may
23 physically remove that item for separate analysis.
24 Q What type of item might be removed for further analysis?
25 A Just any kind of particle or -- you know, a particle that
2473
1 looks of interest to us for further analysis. This could
2 include something that may look like a piece of unconsumed
3 explosive, metal fragments, shavings, anything like that.
4 Q If you don't observe any items or particles, what is the
5 next step in the process?
6 A The next step in our procedure is the extraction process.
7 Q What is involved in the extraction process?
8 A In the extraction process, it is sort of a two-pronged
9 analysis, if you will. We are looking for two different kinds
10 of explosives, basically. We are looking for organic
11 explosives, which tend to be your high explosives, like your
12 NG, your TNT, your EGN, things like that. For that we conduct
13 an extraction using an inorganic solvent, in this case
14 acetone. Acetone is simply fingernail polish remover.
15 Q Can you tell us what you mean by extraction.
16 A When we extract the item, depending on the material, we
17 are simply rinsing it with the acetone when we are doing this.
18 Q You mentioned that the inorganic family tends to relate to
19 high explosives. Is there another grouping?
20 A Yes. As I mentioned, we have a two-prong process for our
21 extraction. The other side of the procedure we use deionized
22 water. That covers typically the low explosive side of the
23 family, which would include black powder, pyrotechnics like
24 fireworks. Those are all readily dissolvable in water.
25 Q Staying for the moment on the analysis of inorganic items,
2474
1 can you after the solvent extraction?
2 A Basically we do a filtration step which cleans it up a
3 little bit before we put it into our laboratory
4 instrumentation, which can be quite sensitive and susceptible
5 to getting clogged with debris.
6 Q What do you do once you clean the sample?
7 A We concentrate the filtrate, the extract that is left
8 behind, down to just a couple of microlitres of solution.
9 Q What do you do with this remaining solution?
10 A Once we have concentrated the samples, we will go to the
11 laboratory equipment, the instrumentation, and begin our lab
12 analyses.
13 Q What is the first instrumentation that you use?
14 A The first instrument we would use would be a gas
15 chromatography with chemiluminescence detection. We call it
16 EGIS, for obvious reasons.
17 Q We will call it EGIS going forward. Can you briefly
18 describe what is involved in the EGIS procedure.
19 A Certainly. On the front of the EGIS I mentioned a gas
20 chromatograph. Chromatography is simply a separation tool.
21 The best way to describe this to you, I think, would be, say
22 you have a bag of coins. You would simply pour that bag of
23 coins into the chromatograph. It is going to separate them.
24 It is going to separate the quarters from the dimes from the
25 nickels. Not only will it separate them, it will tell you how
2475
1 many of each of those things that you have. So it is a
2 separation tool that we use in the laboratory.
3 Q At the back end of that, what does that process tell you
4 about the solvent that you have put in?
5 A Simply the solvent we put in would have different chemical
6 molecules. It is going to separate those out, much like I
7 mentioned that it would separate the coins. It will conduct a
8 simple separation and tell us how much of each of those
9 chemicals that we have within that solution.
10 Q When that process is done, does it tell you whether or not
11 there are any chemicals consistent with explosive residue?
12 A As I mentioned with the EGIS, there is a chemical
13 luminescence detector on the tail end, after it goes through
14 the chromatograph. That chemical luminescence detector is
15 very specific for explosives. It is looking for nitro groups,
16 which explosives contain. So it is a very specific detector.
17 We use it as a screening tool in the laboratory.
18 Q If the detector detects no explosive residue, is there any
19 further step in the process?
20 A No. We are done with the sample at that point.
21 Q If the detector does detect explosives, what if anything
22 do you do next?
23 A If it does detect explosives, we go on with the laboratory
24 protocol to a confirmatory step.
25 Q Can you tell us about the confirmatory steps you take.
2476
1 A Yes. Depending on the kind of explosive that the EGIS
2 tells us it is indicating the presence of, we may go to one of
3 a number of different pieces of analytical equipment that we
4 have in the laboratory. Typically, we would use a gas
5 chromatograph, gas chromatography/mass spectrometry, or liquid
6 chromatography/mass spectrometry to confirm the presence of
7 those explosives.
8 Q Can you tell us the difference between those two methods?
9 A Certainly. A gas chromatography/mass spectrometry, the
10 sample is in a gas phase. With a liquid chromatography/mass
11 spectrometry, the sample is in a liquid phase. Different
12 explosives lend themselves to analyses better by one technique
13 or the other.
14 Q Can you give us some examples of where you might use the
15 gas versus the liquid?
16 A Sure. The gas chromatography/mass spectrometry works very
17 well for TNT, trinitrotoluene, for example.
18 Q What about the liquid?
19 A Liquid chromatography works well for other kinds of things
20 that are more firmly labile, such as nitroglycerin, PETN,
21 which is pentaerythritol tetranitrate.
22 Q Can you tell us briefly how those processes confirm
23 whether or not you have a positive result?
24 A Certainly. Again I mentioned that we have a chromatograph
25 on the front end again. It is the same kind of chromatography
2477
1 that I explained with the EGIS. It is a separation tool. It
2 will separate the components and give you amounts of each of
3 those. After that we have a detector. It is a mass
4 spectrometer. Whether we are introducing it through a gas
5 phase or liquid phase, the mass spectrometer is on the end of
6 that instrumentation. The mass spectrometer basically gives
7 you a molecular fingerprint of those separated chemicals as
8 they come through.
9 Q Is that molecular fingerprint something that is unique to
10 certain chemicals, to each chemical?
11 A Yes.
12 Q This process you described is where you have not made a
13 physical extraction of an item that you have identified, is
14 that correct, like a particle or something you mentioned
15 earlier?
16 A Right, exactly.
17 Q Can you tell us what you do when you physically remove an
18 object from an item you are analyzing.
19 A Again, it would depend what type of object we are talking
20 about.
21 Q Why don't you give us an example involving a metallic
22 object.
23 A OK. If I saw something under visual or microscopic
24 examination that I mentioned I would physically remove for
25 separate analysis, if the object appeared metallic, shiny, our
2478
1 protocol would call for that sample to go to the scanning
2 electron microscope with an energy dispersed xray detector on
3 that for analysis, better known as the SEL.
4 Q Can you briefly tell us what that process involves.
5 A Certainly. We in the FBI laboratory consider that a
6 stand-alone confirmatory method for elemental analysis. It
7 will give you elemental information.
8 Q Which is?
9 A Specific --
10 Q To each --
11 A To each element on the periodic table that the instrument
12 is capable of seeing.
13 Q Can you tell us a little bit about the quality control
14 procedures that you follow within the lab?
15 A We again have standard operating procedures which
16 incorporate quality assurance. For example, in trace cases
17 where we are looking for explosive residues, we have a
18 separate room in which we conduct all the analyses, which is
19 separate from our general laboratory benches. So that is the
20 first step, that we would go to an isolated location for these
21 analyses. When we enter the room, we wear Ty-Vec suits,
22 disposable gloves. We are changing these things frequently.
23 The room is screened through each and every case. We go
24 through a decontamination process in each and every case.
25 Q Ms. Mount, did there come a time that you were asked to
2479
1 analyze items that had been originally brought from Nairobi,
2 Kenya?
3 A Yes.
4 Q Did you conduct an analysis of these items consistent with
5 the protocols you have just described?
6 A I did.
7 MR. KARAS: Your Honor, may I approach the witness?
8 THE COURT: Yes.
9 Q Ms. Mount, I have placed before you what have been marked
10 for identification as Exhibits 844, 787, 788, 956, 993, and
11 571. Can you tell us what those are?
12 A These are summary charts of the specimens which I analyzed
13 in the laboratory and of my laboratory results.
14 Q So we are clear, these are charts that reflect some of the
15 analysis you did on the items brought to you from Kenya; is
16 that right?
17 A Right.
18 Q Did you compare these charts with your notes and the
19 reports you prepared in connection with the analysis of the
20 items?
21 A I did.
22 Q Are they accurate?
23 A Yes.
24 MR. KARAS: Your Honor, we offer Government's
25 Exhibits 844, 787, 788, 956, 993, and 571.
2480
1 MR. WILFORD: Without objection.
2 THE COURT: Received.
3 (Government's Exhibits 844, 787, 788, 956, 993 and
4 571 received in evidence)
5 MR. KARAS: Now if we could display 844, please.
6 Q Ms. Mount, would you take a look at 844, and the breakdown
7 at the top says U.S. Embassy Nairobi. Is that what was
8 represented to you as being the origin of those items?
9 A Yes, it is.
10 Q The column labeled FBI number, is that assigned by the
11 lab?
12 A Yes. That is assigned upon entry into the FBI laboratory.
13 Q The column is labeled item. Who is it that labeled the
14 items that are contained thereunder?
15 A That would have been by the collecting agents.
16 Q But not by you?
17 A Not by me.
18 Q The far column is the result of your analysis?
19 A That's correct.
20 Q You mentioned that you use certain methods of extraction.
21 Do you see here on 844 the items are listed as swabbings. Can
22 you tell us how it is that you go about extracting residue
23 from swabbings.
24 A Certainly. The swabbing, just as a general term, is a
25 material which we are just simply wiping across the surface of
2481
1 something for collection. In this case we were generally
2 dealing with just cotton balls much like you would purchase at
3 a drugstore.
4 As far as the analyses, when I received them I would
5 go through the protocol as I mentioned to you, the visual and
6 the microscopic. Then I would extract them. I would take a
7 couple of microlitres of acetone, rinse them straight across
8 the surface of this cotton ball, extract that off, filter it,
9 reduce it as I mentioned earlier, and then analyze it using
10 the laboratory instrumentation.
11 Q Government's Exhibit No. 843, which corresponds to FBI
12 Q125, which is listed as the swabbing from U.S. Embassy, it
13 says there that you found TNT; is that correct?
14 A That is correct.
15 Q Is TNT considered a high explosive?
16 A It is a high explosive.
17 Q If you could turn and if we could display to Government's
18 Exhibit 787. Do you see on the far right-hand column there
19 are three instances where you found PETN on swabbings from 43
20 Runda Estates?
21 A That is correct.
22 Q Can you tell us whether or not PETN is a high explosive?
23 A PETN is also a high explosive, yes.
24 Q Do you know what kind of use is made of PETN in connection
25 with explosives?
2482
1 A It has several uses. It may be found in blasting caps.
2 It can be used in detonating cord. It can be used as an
3 explosive in and of itself.
4 Q If we could turn and if we could display Government's
5 Exhibit 788. Do you see on the right-hand column there are
6 five references to aluminum. Can you tell us what aluminum is
7 used for in an explosive?
8 A Aluminum is sometimes added to an explosive as additional
9 fuel for the explosive. It would raise the heat of reaction
10 in the explosive.
11 Q If you could turn to and if we could display Government's
12 Exhibit 956. The first two items there, the hiking boots
13 found in Harun's house in the Comoros, what kind of extraction
14 method did you use to get residue off a hiking boot?
15 A In this particular case I took a cotton ball swab and
16 wiped that across the surface of the boots, and then extracted
17 much like any other swab.
18 Q Would you have vacuum items to collect residue?
19 A Vacuuming is a common technique which we use for cloth or
20 clothing type of items. That is typical.
21 MR. KARAS: Thank you. No further questions.
22 MR. WILFORD: I have questions.
23 CROSS-EXAMINATION
24 BY MR. WILFORD:
25 Q Good afternoon, Agent Mount.
2483
1 A Good afternoon.
2 Q How are you doing?
3 A Just fine, thank you.
4 Q Agent Mount, when you were describing the area that you
5 conduct your examination for explosive residue, you indicated
6 that that is an entirely separate and distinct room from where
7 your ordinary laboratory is; is that correct?
8 A That is correct.
9 Q Your ordinary laboratory where you do your forensic
10 analysis, are there other types of agents doing other types of
11 analysis in that laboratory?
12 A In our general bench space, yes.
13 Q Are there people doing document examinations?
14 A No. It's within the chemistry unit, so chemistry type of
15 examinations would be conducted there only.
16 Q The reason for the separate room and the Ty-Vec suit and
17 gloves is to make sure that you maintain the integrity of your
18 examination; isn't that correct?
19 A That is correct, yes.
20 Q And that is because these explosive residues that we are
21 talking about are truly microscopic particles; is that
22 correct?
23 A Or less than microscopic, yes.
24 Q And that can be transferred so many different ways that
25 you want to have a pristine environment when you are
2484
1 conducting your examinations; is that correct?
2 A That is correct, yes.
3 Q Agent Mount, with respect to your assignment of numbers of
4 particular items, do you assign a separate laboratory number
5 to each item which is different from, for instance, a K item
6 that you receive from an agent?
7 A We assign all the Q and K numbers in the laboratory.
8 Those numbers are not assigned in the field by the field
9 agents. When it crosses the laboratory doors, that is when
10 those numbers are assigned.
11 Q The WO number, what is that?
12 A Excuse me.
13 Q Is there a WO number?
14 A WO?
15 Q Yes.
16 A I am not familiar with that.
17 Q Is there a lab number?
18 A There is a lab number, yes.
19 Q What is that?
20 A The laboratory number indicates, if you look at a number,
21 the first two digits are the year in which it came in, the
22 next two are the month, the next two are the date, and the
23 last three digits are simply that number case that entered
24 through our evidence control center on that particular day.
25 Q When items are brought to you and you are doing this
2485
1 examination for explosive residue, would it be fair to say
2 that you would like to have each item separate from the other
3 items that you want to examine? Do you follow?
4 A Not exactly.
5 Q You wouldn't want to have a large group of items in, say,
6 a bucket or something like that. You would like to have each
7 thing sealed in a plastic bag and examine it and know the
8 origin of it; is that fair to say?
9 A It would depend upon where the samples are collected.
10 Certainly if they were in association with one another at the
11 collection site, then the necessity of separating them out for
12 transport is not as great. But certainly from different sites
13 I would want those separated most definitely, yes.
14 Q Agent Mount, when the high explosive device is detonated,
15 these particles go into billions and billions of particles; is
16 that correct?
17 A That is correct.
18 Q Could you describe that to the jury, please, how small
19 these particles are.
20 A It is hard to exactly describe it. It depends on how
21 complete the explosion is. If it explodes and functions as
22 designed, certainly gasses are left behind in large part. If
23 it doesn't fully function, you might find bits of unconsumed
24 materials. Explosions are chaotic events. They never occur
25 the same manner any two times.
2486
1 Q In the materials that you examined from the embassy, you
2 didn't recover any undischarged explosives, did you? You
3 recovered only residue, right?
4 A Residues, right. Nothing physically -- right.
5 Q When you do a comparison of the residue that is recovered,
6 do you do a measurement of how much TNT you recover?
7 A No. That is not possible, actually.
8 Q Why isn't it possible?
9 A Again, as I mentioned, explosions are chaotic events. It
10 is impossible to predict where the residues are going to go.
11 Not only not knowing the starting materials, you couldn't
12 offer any kind of quantification associated with that.
13 Q You can't even measure the amount of residue that is
14 recovered?
15 A Certainly with the techniques I have, there are stronger
16 signals than others produced by the instrumentation, but I
17 would not be able to fully quantitate a given amount of
18 explosives as a starting material, no.
19 Q You answered another question that I was going to ask
20 later, but this question is, when you actually recover the
21 explosive residue, can you quantitatively measure the amount
22 that you recover, not --
23 A No, no.
24 Q You have no way of doing it?
25 A No.
2487
1 Q There are no instruments in the FBI lab which permit you
2 to do that?
3 A Not post-blast, no.
4 Q In your examination of the items that you admitted into
5 evidence, did you use a microscope?
6 A In some instances, yes.
7 Q And you used a high-powered microscope?
8 A For some samples a scanning electron microscope was used,
9 which is very high-powered.
10 Q You also used the EGIS examination for each item; is that
11 correct?
12 A That is correct.
13 Q Were there particular items where you used other means of
14 examination other than simply EGIS and microscopic
15 examination?
16 A Well, EGIS is a part of our standard protocol, so each
17 sample would have been analyzed using that. I guess I don't
18 know what you are asking beyond that.
19 Q You didn't use any other method besides the EGIS and
20 microscopic examination?
21 A Yes, most definitely.
22 Q What do you did?
23 A The gass chromatograph/mass spectrometer, the liquid
24 chromatograph/mass spectrometer, scanning electron microscope.
25 Other tools were used, certainly.
2488
1 MR. WILFORD: Thank you very much.
2 THE COURT: Mr. Baugh?
3 MR. BAUGH: Just a few. Thank you.
4 CROSS-EXAMINATION
5 BY MR. BAUGH:
6 Q Ms. Mount, I notice that on the swabbings that were done,
7 like inside the bathroom and inside the drain trap, there is
8 aluminum there.
9 A Certainly.
10 Q But it appears that on the post-explosive samples there is
11 no aluminum.
12 A That is correct, I didn't find any aluminum post-blast.
13 Q Also, when it comes to these TNT particles, you understand
14 how lay people have a hard time understanding how small these
15 pieces are.
16 A Right.
17 Q In fact, it's smaller than small.
18 A That is true.
19 Q You said usually, if the explosion goes exactly according
20 to plan, most of the TNT is going to be consumed in the
21 explosion.
22 A That's correct.
23 Q Such as an engineer-designed airline bomb that is dropped
24 from an airplane, that would have better characteristics than,
25 say, something stuck in the back of a truck.
2489
1 A I can't say that.
2 Q Tell the jury this. Did you see the pictures of the bomb
3 site at Nairobi with that big pillar of smoke?
4 A I believe I did see some of those, yes.
5 Q It would be expected to find explosive residue in that
6 pillar of debris and smoke, wouldn't it?
7 A Possibly, possibly not.
8 Q Further, if the TNT was residually in that pillar of
9 smoke, if I walked through that pillar of smoke, I could get
10 TNT residue on me, couldn't I?
11 A Possibly. Again --
12 Q That's fine. Further, however high that cloud goes, if
13 that cloud has TNT residue in it, anybody who is downwind from
14 that cloud, if there is TNT residue in it, it can adhere to,
15 right?
16 A Potentially, yes.
17 Q That cloud could go several hundred yards, several
18 kilometers?
19 A Certainly.
20 Q Certainly. Also, if one piece of clothing had TNT residue
21 on it, or PETN residue on it, and it was put into a paper bag
22 with a bunch of other clothes that when they went in there
23 didn't have that residue, and they were carting around that
24 bag for a few days, there could be cross contamination,
25 wouldn't it?
2490
1 A Possibly.
2 Q Am I correct that TNT has a certain, how should I say,
3 adherence quality to it? It is sort of sticky, the residue
4 is?
5 A Some of it.
6 Q The fact that on certain items you did not find aluminum
7 but on swabs that were taken at the site where the government
8 believes the bomb was built you did find aluminum --
9 A That's correct.
10 Q Is it logical that the aluminum would have been consumed
11 in the blast?
12 A I couldn't answer that.
13 Q If all of your post-explosion swabbings do not have
14 aluminum and all your preexplosive swabbings do have aluminum,
15 would that indicate to you that more or a majority of the
16 aluminum was consumed in the blast?
17 A Not necessarily.
18 Q No aluminum was found in Mr. Al-'Owhali's samples, were
19 there?
20 A I am not sure --
21 Q Referring to Exhibit 571, summary of exhibit analysis by
22 Kelly Mount.
23 A That is correct.
24 Q These K numbers that are going down the left margin, I
25 believe in response to Mr. Wilford's -- that's Mr. Wilford --
2491
1 question, you assigned those K numbers?
2 A I didn't, but that was done in the explosives unit
3 laboratory, yes.
4 Q So the fact that each of these items have a separate
5 number doesn't mean that each of these items came in a
6 separate sterile container.
7 A That is correct.
8 Q Who -- when I say who, I don't mean the person, but would
9 a technician assign those numbers?
10 A Typically, that is the way it works. An examiner and/or
11 technician who is the primary examiner on the case that
12 received it would assign those numbers.
13 Q Doesn't anybody ever preserve the original packaging --
14 A Yes, certainly.
15 Q Where is the original packaging that this clothing came
16 in?
17 A I would assume it is still with the items.
18 Q If you took one pair of contaminated clothing, let's say
19 someone was wearing in the explosion, and you mixed it with a
20 bunch of clothes that he wasn't wearing in the explosion and
21 you put it in a bag, how long would it have to stay in the bag
22 before there would be cross-contamination -- you can't tell,
23 could you?
24 A I can't.
25 Q It would depend on how long it was there and where it was
2492
1 and all that?
2 A I would think.
3 Q If I was standing with my bathing suit on and I was
4 downwind of that cloud, the TNT would adhere to my person,
5 wouldn't it?
6 A Possibly.
7 Q Then if I put on clothing over the top of it, I would
8 cross-contaminate the clothing, right?
9 A Possibly.
10 MR. BAUGH: Thank you. Pass the witness.
11 THE COURT: Anything further?
12 MR. WILFORD: No, your Honor.
13 MR. KARAS: Brief redirect, your Honor?
14 THE COURT: Yes, redirect.
15 REDIRECT EXAMINATION
16 BY MR. KARAS:
17 Q Ms. Mount, you were asked questions about what happens if
18 clothes that are contaminated with TNT are mixed with clothes
19 that originally don't have TNT. Do you recall that?
20 A Right.
21 Q Is cross-contamination from one article of clothing a
22 guarantee with another article of clothing?
23 A No, it is not a guarantee.
24 Q You were asked questions about how you could collect TNT
25 on your person if you walked through a cloud that results from
2493
1 a TNT explosion. Do you recall that?
2 A Yes.
3 Q Could you also get TNT on your person if you are making a
4 TNT bomb?
5 A Yes, you could.
6 MR. KARAS: No further questions.
7 THE COURT: Very well. Thank you.
8 RECROSS-EXAMINATION
9 BY MR. WILFORD:
10 Q Agent Mount, if TNT is being ground preexplosion, being
11 ground up, the person that is handling that ground TNT, their
12 hands and clothing would be loaded with it; wouldn't that be
13 fair to say?
14 A Potentially, is what I would say.
15 (Continued on next page)
16
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21
22
23
24
25
2494
1 MR. WILFORD: Thank you. Nothing further.
2 THE COURT: Thank you, ma'am. You may step down.
3 (Witness excused)
4 MR. BUTLER: The government has a few stipulations to
5 read. The first stipulation has been marked for
6 identification as Government Exhibit 41.
7 It is hereby stipulated and agreed by and between the
8 parties that if called as a witness an official of the United
9 States Department of State would testify as follows:
10 1. Government's Exhibit 813 is a true copy of the
11 lease for the property on which the United States Embassy in
12 Nairobi, Kenya, was located as of August 7, 1998.
13 It is further stipulated and agreed that this
14 stipulation may be received in evidence as a government
15 exhibit at trial.
16 The government would move the admission of the
17 stipulation, which is Government's Exhibit 41, and the lease,
18 which is Government's Exhibit 813.
19 THE COURT: Received.
20 (Government's Exhibits 41 and 813 received in
21 evidence)
22 MR. BUTLER: The second stipulation has been
23 premarked for identification as Government's Exhibit 40. That
24 reads:
25 It is hereby stipulated and agreed by and between the
2495
1 parties that if called as a witness an official of the United
2 States Department of State would testify as follows:
3 1. The following persons killed in the bombing of
4 the American Embassy in Nairobi, Kenya, on August 7, 1998,
5 were "internationally protected persons" within the meaning of
6 Title 18, United States Code, section 1116. Those persons are
7 Julian Leotis Bartley, Sr., and Prahbi Gutpara Kavaler.
8 It is further stipulated that this stipulation may be
9 received as a government exhibit at trial.
10 The government would move the admission of
11 Government's Exhibit 40.
12 THE COURT: Received.
13 (Government's Exhibit 40 received in evidence)
14 MR. BUTLER: The next stipulation has been previously
15 marked as Government's Exhibit 42 for identification. That
16 reads:
17 It is hereby stipulated and agreed by and between the
18 parties that if called as a witness officials from various
19 relevant United States government agencies would testify as
20 follows:
21 1. The following persons killed in the bombing of
22 the American Embassy in Nairobi, Kenya, on August 7, 1998,
23 were officers or employees of the United States government
24 engaged in the performance of official duties within the
25 meaning of Title 18, United States Code, section 1114. Those
2496
1 names are:
2 Jesse Nathaniel Aliganga; Julian Leotis Bartley, Jr.;
3 Julian Leotis Bartley, Sr.; Chrispine Bonyo; Jean Rose Dalizu;
4 Lawrence Ambrose Gitau; Molly H. Hardy; Kenneth Ray Hobson;
5 Hindu Omar Iddi; Tony Kihato Irungu; Geoffrey Mulu Kalio; Joel
6 Gitumbo Kamau; Lucy Nyamira Karigi; Prabhi Gutpara Kavaler;
7 Joseph Kamau Kiongo; Arlene Bradley Kirk; Peter Kabau
8 Macharia; Francis Watoro Maina; Fred Yafes Maloba; Cecilia
9 Mamboleo; Mary Louise Martin; Lydia Mukiri Mayaka; Francis
10 Ndungu Mbugua; Dominic Kithuva Musyoka; Francis Kibe Njuguna;
11 Francis Mbogo Njuige; Vincent Kamau Nyoike; Francis Olewe
12 Ochito; Ann Michelle O'Connor; Maurice Okatch Ogola; Sherry
13 Lynn Olds; Edwin Opiyo Omori; Lucy Grace Onono, Evans Kibiro
14 Onsongo; Eric Abuor Onyango; Caroline Sella Opati; Rachel
15 Magasia Pussy; Uitamlal Thomas Shah; Fahat Sheikh; Phaedra
16 Vrontamis, Adams Titus Wamai.
17 It is further stipulated and agreed that this
18 stipulation may be received in evidence as a government
19 exhibit at trial, and the government would now offer this
20 stipulation as Government's Exhibit 42.
21 THE COURT: 42 received.
22 (Government's Exhibit 42 received in evidence)
23 MR. BUTLER: Your Honor, the government would like to
24 publish Government's Exhibit 814, which has been previously
25 entered into evidence by stipulation, and request that we be
2497
1 able to pass this around to the jury. This was the watch
2 recovered at the site of the American Embassy on August 7,
3 1998.
4 THE COURT: Yes.
5 MR. KARAS: Your Honor, the next witness is going to
6 require us to move some items around.
7 THE COURT: How long will that take?
8 MR. KARAS: Five or 10 minutes.
9 THE COURT: So the suggestion is that we break for an
10 early lunch?
11 MR. KARAS: That is the implicit suggestion.
12 THE COURT: All right. When you have had a chance to
13 see the watch that is being passed around, then you can return
14 to the jury room, and we will recess until 2:00.
15 (Luncheon recess)
16
17
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20
21
22
23
24
25
2498
1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 (In open court; jury not present)
4 THE COURT: I understand the same rulings with
5 respect to cross-examination of the ambassador that obtained
6 with respect to Ambassador Bushnell apply.
7 MR. BAUGH: Your Honor, I think I made a formal
8 objection. Yes, I understand the same as per your memorandum
9 we are not to cross-examine on any of the issue that are
10 purely mitigation issues.
11 THE COURT: Purely mitigation or --
12 MR. BAUGH: Or security.
13 THE COURT: -- or security.
14 MR. BAUGH: That's correct, your Honor. And we
15 object to that. As an aside, at our next break can we have an
16 extra five minutes so I can go through a stipulation with my
17 client.
18 MR. KARAS: Your Honor, I would also like to put on
19 the record after Ambassador Lange we would request that the
20 next three witnesses not be sketched.
21 THE COURT: Very well.
22 (Continued on next page)
23
24
25
2499
1 (Jury present)
2 THE COURT: The government may call its next witness.
3 MR. KARAS: Thank you, your Honor.
4 At this time I'd like to read from what has been
5 marked for identification as Government Exhibit 53 which is a
6 stipulation.
7 It is hereby stipulated and agreed by the parties as
8 follows:
9 1. Government Exhibit 84 is an excerpt of a
10 videotape of the immediate aftermath of the bombing of the
11 American Embassy in Dar es Salaam, Tanzania on August 7, 1998.
12 The video was taken by an official from the Tanzanian Criminal
13 Investigation Division.
14 2. Government Exhibits 1103-A through 1103-U are
15 photographs of the exterior of the American Embassy in Dar es
16 Salaam, Tanzania and the surrounding area taken on August 7,
17 1998 or on days soon after the bombing. These photographs
18 fairly and accurately depict the scenes photographed.
19 3. Government Exhibit 1100 is a three-dimensional
20 model which accurately depicts the American Embassy in Dar es
21 Salaam, Tanzania and the immediate surrounding area as it
22 looked before the bombing on August 7, 1998.
23 4. Government Exhibits 1101 and 1102 are drawings of
24 the American Embassy in Dar es Salaam, Tanzania and the
25 surrounding areas drawn to approximate scale. The drawings
2500
1 accurately reflect the distance between the embassy and
2 certain areas indicated in the drawings.
3 5. Government Exhibits 1104A through 1104H are
4 photographs of the interior of the American Embassy in Dar es
5 Salaam, Tanzania after the bombing on August 7, 1998.
6 6. Government Exhibits 1105A through 1105B are
7 photographs of the American Embassy in Dar es Salaam, Tanzania
8 taken before the bombing.
9 At this time, your Honor, we move Government Exhibit
10 53 and the exhibits just referenced therein into evidence.
11 THE COURT: Received.
12 (Government's Exhibits 53, 84, 1103A through 1103U,
13 1100, 1101, 1102, 1104A through 1104H, 1105A through 1105B
14 received in evidence)
15 MR. KARAS: If we could display 1103A which is a
16 photograph of the interior of the embassy.
17 THE COURT: Don't you want to call the witness before
18 you do that?
19 MR. KARAS: At this time, your Honor, the government
20 calls Ambassador John Lange.
21 JOHN E. LANGE,
22 called as a witness by the government,
23 having been duly sworn, testified as follows:
24 DIRECT EXAMINATION
25 BY MR. KARAS:
2501
1 Q Good afternoon, Ambassador.
2 A Good afternoon.
3 Q Ambassador, where are you currently posted?
4 A I am the United States Ambassador to the Republic of
5 Botswana in Southern Africa.
6 Q How long have you been in the foreign service, sir?
7 A I entered the foreign service in March of 1981, twenty
8 years.
9 Q Before you became the United States Ambassador to Botswana
10 where were you posted?
11 A I was posted in Dar es Salaam Tanzania as the deputy chief
12 of mission, the deputy to the Ambassador, in other words, but
13 when there was a superior, when there was no Ambassador such
14 as my first nine months at post when I was in the country I
15 was known as the charge d'affaires, the person in charge.
16 Q Were you the deputy chief of mission in Dar es Salaam,
17 Tanzania on August 7, 1998?
18 A Yes, I was the deputy chief of mission and at that time
19 serving as the charge d'affaires.
20 Q Which means there was no Ambassador at that time, is that
21 correct?
22 A Exactly.
23 Q Now, can you tell us the morning of August 7, 1998 what
24 time you arrived to work?
25 A I arrived to work at the normal time about 8 o'clock.
2502
1 Q And at approximately 10 a.m. where were you?
2 A At 10 a.m. I had scheduled a meeting in my office, the
3 DCM's office with seven other people to talk about political
4 economic and commercial issues of concern to the US government
5 in Tanzania. It was a normal weekly meeting.
6 Q And when that meeting began were there any interruptions?
7 A Well, 10 a.m. every Friday we had our normal alarm drill
8 in which the marine in this case was Corporal Johnson, and
9 announced over the loudspeaker system through the embassy that
10 we would be hearing alarms for a fire, for a bomb or a
11 terrorist attack, and then the conclusion was the all clear
12 signal.
13 So we, at the beginning of the meeting we all
14 patiently waited to listen to these four different sirens
15 going on as part of a normal drill and then we began the
16 meeting.
17 Q And were there any other interruptions during the meeting?
18 A Well, the big one which was at 10:39 in the morning when a
19 huge explosion occurred outside of the embassy.
20 Q Can you describe what you first heard at 10:39 a.m.
21 A I heard maybe a second or something of deep rumble and
22 then the explosion hit the office that we were in. I was
23 sitting with my back to the other wall. I had one person who
24 was actually an unpaid intern working for the State Department
25 that summer, a law student from UCLA on my left, and other
2503
1 employees, American and Tanzanian employees, six others on my
2 side and in front of me, and I was with my back to the other
3 wall, and the glass which was a high window blew in over my
4 head and landed on the people in front of me.
5 Q And what happened after the glass blew in over your head?
6 A Well, it's the kind of thing that, I now kind of
7 understand what it's like when the parachute doesn't open and
8 your entire life flashes in front of your eyes, because I can
9 still see that glass going in slow motion in a sense, even
10 though it was in a split second, landed on the people.
11 We had something called mylar or shatter resistant
12 window film. It's a plastic coating on the windows. So that
13 it didn't break into the small shards that would have been far
14 more deadly, but it ended up landing then in chunks on the
15 people in front of me and caused some injuries, but nothing
16 serious on the people in front of me. And I myself was not
17 injured, because the window was a high one. It went over me.
18 Q Did you hear any other sounds after the glass broke?
19 A What happened was after that, after the glass landed
20 there, then we started hearing explosions going on outside of
21 the building, and there was of few seconds, every five, ten
22 seconds or something like that it went on for about five
23 minu